The international lawyer:
Philippe Sands
In general terms there are three options. The first is to subject him to a criminal procedure under Iraqi law and before Iraqi judges. This is the ”national” option, and has been used with mixed results in Rwanda and the former Yugoslavia. The real problem here may be to find judges of sufficient authority to meet all the necessary standards of independence and impartiality.
A second possibility would be to establish an ”internationalised” procedure under Iraqi law, involving a mixed criminal court of Iraqi judges and judges of other nationalities, and applying Iraqi law and international law. This was the chosen option for Kosovo and East Timor, and is also proposed for Cambodia.
A third option would be to bring Saddam Hussein before a fully-fledged international court, involving international judges and international law. This is the Nuremberg option, and it could be located in Iraq or elsewhere. The International Criminal Court is not an option, since Iraq is not a party and because it only has jurisdiction for international crimes committed after July 1 2002. That means creating a dedicated international court, as has happened for Yugoslavia, Rwanda and Sierra Leone.
In assessing the various options a number of factors will have to be considered. Criminal proceedings must be seen to be legitimate, not least in the Arab and Muslim worlds. Any international element will therefore have to involve a majority of judges from the region, and any Iraqi judges will need to be independent of events in Iraq over the past 30 years. Cost will be another factor: the international criminal tribunals for Yugoslavia and Rwanda have been costly, and in the eyes of many, far too slow. The possibility of the death penalty will also be an issue, and would not be on the agenda for an international court.
All this points to a court based in Iraq, with an international component among the judges, and applying minimum international standards of due process. But if any proceedings are to be legitimate, the choice must ultimately rest with the people of Iraq and the government that will emerge after next June. Justice dispensed by the occupying powers alone will always be tainted by questions of legitimacy, as Nuremberg has shown.
Philippe Sands is a specialist in international law and professor of law at University College London
The Nuremberg veteran:
Gitta Sereny
I am in no doubt that the trial must take place in Iraq. In 1946 and 1947 I attended the Nuremberg trials for several days, and I think many people have forgotten that this groundbreaking trial was broadcast in its entirety. This had an enormous effect in Germany — some of it negative, but most of it positive. It was on in schools for much of the day, and most of the Germans I met listened to it for part of the day, or in the evening. The whole country was involved. For me, this is absolutely point number one for Iraq.
Something that needs to be considered are the political problems that will arise in Iraq when such a trial takes place, for we are talking about a country that, while highly educated, is also very politically divided. The presence of Saddam in an Iraqi court is going to cause enormous problems: endless and, I imagine, violent debates in public and private demonstrations and fights in the streets.
Security will therefore be a major concern. Post-war Nuremberg was an occupied city, exactly as is Baghdad now. You cannot imagine the security in Nuremberg during the trial; it became a police city. This time, though, the recent history of security in Iraq does not bode well. Who will do the policing? It shouldn’t be the Americans, and the Iraqi police do not yet have the skills. God knows whether this can be done, but perhaps it might be acceptable to the Iraqis to bring in United Nations troops to secure the place instead?
For this trial to be carried out correctly, furthermore, it has to be done on a different basis than the Iraqis have ever known. How does the judiciary learn, in the comparatively short time available, how to carry out such a trial, which, if it is properly conducted, will take many months, for it will have to cover the whole of Iraqi history over the past 30 years? The Iraqi judiciary will need instruction, but will the occupying Americans be open to this instruction coming from international lawyers? Would the Iraqis accept judicial assistance, before and during the trial, from The Hague? It is also absolutely necessary that Saddam is well defended. But Iraqi lawyers are totally inexperienced at defending a man accused of the things he will be accused of. Perhaps his counsel should have a sidekick from a neutral nation, such as Sweden.
Nuremberg was a trial by the victors — how could it have been anything else? — and in order to avoid this, it is very important that it does not become an American trial. But even so, how can there not be a sense of revenge against Saddam in a country where he had, at the very least, tens of thousands killed? For the so-called NS (Nazi) Trials in Germany, hundreds of which were held as a continuation of Nuremberg, the decision was taken that nobody could be sentenced to death who had not killed with his own hands. The result was that countless men who, in the mood of that time, should and would have hanged were in fact saved, and five years later, were freed under an ill-considered Allied amnesty. This cannot be allowed to happen with Saddam, who, if an additional justification for severest punishment is needed, is in fact known to have killed with his own hands.
Gitta Sereny attended the Nuremberg trials and wrote a book about Albert Speer
The war crimes prosecutor:
Richard Goldstone
We are all fortunate that Saddam was taken alive, rather than dead, because it offers the world community — and the US in particular — a chance to show that we are more principled and fair than he could ever have been and that the rule of law is stronger than the need for revenge.
But how exactly is it to be done? Similar debates have arisen with regard to other war criminals. It is to the credit of the US that the leading Nazi war criminals were brought to justice at Nuremberg. The leaders of the other victorious allied nations would have preferred their summary execution.
And the Nuremberg legacy, in turn, inspired the establishment — under the leadership of the US — of the UN war crimes tribunals for the former Yugoslavia and Rwanda. Thanks to strong financial and political support from the US, those two tribunals have achieved important successes. In looking forward to the appropriate trial for Saddam, I would suggest that decisions should be dictated by the following:
First, the primary goal of such a trial must be to bring justice to the victims of the horrendous crimes for which Saddam stands accused. That can be achieved only by gathering meticulous proof of those crimes and of the part that Saddam played in their execution.
Second, the trial must be — and must be seen to be — scrupulously fair, according to present-day norms. Those are the norms that the US has traditionally upheld in its own country and by which it has judged the criminal justice systems of other nations. They are also now the norms that are recognised and upheld by the community of democratic nations.
Third, a trial of Saddam must not be left open to the criticism that has been associated with Nuremberg and the trial in Jerusalem of Adolf Eichmann — namely, that they represented ”victors’ justice”.
Fourth, criminal trials should be held as close as possible to the crime scenes. That is important for the victims. It seems reasonable, therefore, that the trial of Saddam should take place in Iraq. However, I am highly sceptical of the claim by some members of the Iraqi governing council that there are appropriate Iraqi judges who, without assistance, could preside at war crimes tribunals.
There has been no credible Iraqi criminal justice system for some decades. There are few if any Iraqi prosecutors who have the experience needed to mount credible prosecutions. There are no credible Iraqi defence lawyers capable of providing Saddam with the advice and support that he would need in defending himself. The independence of the judges would be highly questionable as well.
Although the Iraqis are not prepared to handle such trials on their own, this does not mean that the US should take the job on itself — it must have the backing of the international community. The best solution would be the kind of hybrid court that has been set up in Sierra Leone and Cambodia — a mix of local and international judges and prosecutors, including guarantees for the safety of defence lawyers.
I would suggest that the UN and the US together could provide crucial support for such a war crimes court in Iraq. It would also have the merit of furthering the just demand of the US that a new Iraq has a democratic form of government. Above all, it would serve the interests of the most important beneficiaries of such a trial — Saddam’s victims.
Richard Goldstone is the former chief prosecutor of the UN war crimes tribunals for the former Yugoslavia and Rwanda. He recently stepped down as a justice of the South African constitutional court
The Iraqi ex-pat:
Dr Nadje Al-Ali
I would like to see Saddam tried by an international tribunal, but I am concerned that the US will veto this idea. Many Iraqis still living in the country would prefer him to be tried by an Iraqi court, but I believe that there should be a standard tribunal for war crimes that can be applied internationally. I doubt that he will be given a public trial because the West will worry about what he might say. He will point the finger at people in Western countries who were really part and parcel of him coming to power in the first place and, while I am not a conspiracy theorist, I do not believe that those governments will allow people to hear those allegations.
Dr Nadje Al-Ali is an Iraqi lecturer in social anthropology at the Institute of Arabic and Islamic Studies, Exeter University
The Arab editor:
Abdel Bari Atwan
Once the dust has settled down and the news of the arrest of Saddam disappears from the front pages, US President George W Bush and British Prime Minister Tony Blair may discover that their celebrations were premature. They will probably find themselves facing an unprecedented legal and moral dilemma.
Trying Saddam inside Iraq will only confirm to more than 300-million Arabs and one and a half billion Muslims the hypocrisy of the US and British governments and their double standards.
When the US administration invaded Iraq and imposed sanctions on it for 13 years, it did so in implementation of the United Nations (resolution). Now, when it is time to try Saddam as a war criminal, he is not being treated in accordance with international law as his other friends, particularly Slobodan Milosevic, have been treated. Arabs and Muslims will be wondering if Saddam is dealt with differently simply because he is an Arab, a Muslim and a non-European.
The British government did not say that the Serbs were the ones who could decide the fate of Milosevic, nor did it or its US ally insist on putting him on trial at the International Court of Justice at The Hague as a war criminal, where he would be accorded the treatment he deserves as a defendant and as a head of state. We know that, unlike the Iraqi governing council, the Serb government is democratically elected.
The Iraqi governing council does not enjoy sovereignty and its members, the majority of whom are opponents of the Iraqi president and have been disadvantaged by his bloody regime, are appointed by the US government. The Iraqi judiciary is feeble and has been the creation of the Ba’ath Party and therefore enjoys no credibility in the Arab street or in the Arab world.
The US administration caused a legal disaster when it refused to implement international law, or even US law, on the detainees held at Guantanamo Bay, under the pretext that the Fourth Geneva Convention on prisoners of war does not apply to them. Any violation of the articles of this convention this time will relegate the US to the ranks of dictatorial states that violate international law. — Â